Subpoena to produce documents (Form 43B)

A subpoena to produce is an order requiring the addressee to produce the subpoena or a copy of it and a document or thing (r 24.11). In the Federal Court a subpoena may be issued only with the leave of the Court (r 24.01), and the Subpoenas and Notices to Produce Practice Note (GPN-SUBP) says the issuing party must show a legitimate forensic purpose. Rule 24.13 requires Form 43B for a subpoena to produce documents. The subpoena may be addressed to only one person, must identify the documents and the date, time and place for production, and must state the last date for service (r 24.13). Failure to comply without lawful excuse is a contempt of court (r 24.23).

When you need it

• You are a party and need documents held by someone else, often a non-party such as a bank, employer or government agency, to prove an issue in the case.
• You can describe the documents with reasonable particularity. GPN-SUBP warns against wide or general terms and "fishing"; where documents can only be described by broad category, non-party discovery may be the better course.
• Use Form 43A to require someone to give evidence and Form 43C to require both evidence and documents (r 24.13(1)).

1. 1

   Heading and addressee

   Copy the file number, Registry, Division and parties. After "To", name one addressee only, by name or by office or position, with an address (r 24.13(2), (3)). A corporation complies through its proper officer (r 24.13(9)).

2. 2

   Last date for service

   Insert the last date for service. Under r 24.13(8) it is 5 days before the earliest date for compliance unless the Court fixes another date, and the addressee need not comply if served after it (r 24.17(2)).

3. 3

   Issuing party

   State the party at whose request the subpoena is issued and that party's address for service and email (r 11.01).

4. 4

   Date, time and place for production

   Insert when and where the addressee must attend to produce, which must be the trial date or another date the Court permits (r 24.13(6)), and the Registry address to which the documents can instead be delivered or posted at least 2 clear business days beforehand (r 24.17(4)).

5. 5

   Schedule of documents

   List each document or thing to be produced precisely, with dates and subject matter, so the addressee can tell what is caught. Attach a list if needed.

6. 6

   Leave the notes and declaration intact

   Do not change the printed notes. The Declaration by Addressee at the end is completed by the person producing the documents, who declares whether any documents are originals to be returned (r 24.17(7A)).

• Seek leave first. GPN-SUBP says leave can be sought orally at a hearing with a draft subpoena ready, or in writing by eLodging the Court's Request for Leave to Issue Subpoena form with the draft subpoena attached in Word format. A request can be made without notice to the other parties (r 24.01(2)).
• Once leave is given, a Registrar issues the subpoena by sealing it or otherwise authenticating it (r 24.12(3), (4)). A fee applies to issuing a subpoena - check the Court's current fee schedule.
• Serve it personally on the addressee by the last date for service (r 24.16(1)), and serve a copy on each other party as soon as practicable after that (r 24.16(2)). Conduct money must be tendered a reasonable time before compliance if attendance is needed (r 24.17(1)).
• Documents produced may be inspected only with leave or as a Registrar permits, and any objection by the addressee or a party is referred to the Court (r 24.20).

• Serve early. GPN-SUBP asks issuing parties to avoid last-minute subpoenas and to consider the addressee's burden, for example by narrowing categories or allowing more time.
• A non-party addressee can ask the Court to order the issuing party to pay its reasonable loss or expense of complying, including legal costs (r 24.22, note 11 on the form).
• The addressee may produce copies unless originals are specifically required, including in the electronic formats listed in note 9 (r 24.17(6), (7)).
• GPN-SUBP (2016) refers to attaching a Form 44 notice and declaration. The current Form 43B (effective 11 January 2023) already contains a Declaration by Addressee, so check the registry's current practice before adding Form 44.